You managed a store containing thousands of counterfeit CDs and DVDs and disc-burning equipment? Not good facts when issue is knowledge of deceptive labeling.

Allen v. United States (decided April 21, 2016).

 
Players: Associate Judges Beckwith and Easterly, and Senior Judge Belson. Opinion by Senior Judge Belson. Fletcher Thompson for Mr. Allen. Trial judge: Michael Ryan.  

Facts: Mr. Allen was the manager of a store where police found thousands of counterfeit CDs and DVDs, as well as equipment for burning discs and “spindles” of discs awaiting packaging. He was convicted of two counts of felony deceptive labeling in violation of D.C. Code § 22-3214.01(b).  

Issue: Was there sufficient evidence that Allen knowingly engaged in deceptive labeling?

Holding:  Yes. There was “ample evidence from which the jury could reasonably infer that appellant knowingly offered audio recordings and audiovisual work that did not clearly and conspicuously disclose the true name of the manufacturer,” where the record showed that Mr. Allen had worked as manager at the store for more than two years; that he was responsible for ordering CDs and assisting customers in purchasing them; that he had access to the areas where police found disc-burning equipment and burned discs awaiting packaging; and that he had made “mix tapes from illegally downloaded music.”              

Of Note: The statute’s knowledge requirement applies to both “the act of distributing or possessing for distribution . . . and the actual defects in the labeling.”  MW

Read full opinion here.

Counsel Was Ineffective in Failing to Consult with Client About Legal Options After Government Breach of Plea Agreement, But No Prejudice

Ralph L. Clark v. United States (decided April 21, 2016)

Players: Chief Judge Washington, Judge Thompson, and Senior Judge Ferren. Opinion by Judge Ferren. William T. Morrison for Mr. Clark. Trial judge: Ann O. Keary.

Facts: This was an appeal from the denial of a § 23-110 motion based on ineffective assistance of counsel. Mr. Clark’s conviction was previously affirmed on direct appeal. See Clark v. United States, 51 A.3d 1266 (D.C. 2012). Clark pleaded guilty to an armed robbery, and his plea agreement provided that the government agreed not to allocate for a sentence greater than 10 years. Nonetheless, in its sentencing memo, the government recommended 20 years of incarceration. The trial judge caught the error at the sentencing hearing, but went forward with the sentencing, deeming it sufficient for the government to file an amended sentencing memorandum. Defense counsel agreed to this. During allocution, however, the prosecutor argued that a ten-year sentence would be “very generous.” The trial court sentenced Mr. Clark to ten years in prison.

On appeal, Mr. Clark argued that the government had compounded its breach of the plea agreement by arguing that that a ten-year sentence would be “very generous,” and sought remand for resentencing before a different judge. The Court of Appeals found the government’s breach to be “grave and inexcusable,” but because trial counsel did not object to the allocution or to the trial judge’s decision to keep the case for sentencing instead of referring it to another judge, the Court reviewed for plain error and affirmed Mr. Clark’s conviction.

Mr. Clark then filed a §23-110 motion alleging that his plea attorney had provided ineffective assistance by deciding to continue with sentencing without consulting with Clark about the government’s breach of the plea agreement and the available remedies, including assignment to a different judge for sentencing or plea withdrawal. The sentencing judge denied the § 23-110 motion without a hearing.

Issue: Did plea counsel provide constitutionally ineffective assistance warranting reversal by failing to inform Clark about the government’s breach of the plea agreement and failing to explain his legal options in response to that breach?

Holding: No. Counsel was constitutionally deficient in failing to consult with Mr. Clark about his legal options after the government’s breach of the plea agreement, but there was no “reasonable probability that, but for counsel’s failure to advise about plea withdrawal, Clark would have sought to withdraw his plea.”

Of Note:

• No Shepard bar. The Court noted that Clark filed his § 23-110 motion after the Court of Appeals had announced its decision in his direct appeal (Clark I), but before the Court issued its mandate. It did not recognize any procedural default pursuant to Shepard v. United States, 533 A.2d 1278 (D.C. 1987) (generally requiring ineffective assistance claims to be raised during the pendency of the direct appeal), however, because “[n]either the government nor the court raised a timeliness issue when the motion was filed, nor does the government do so in this appeal.” The opinion does observe that Clark could have “ask[ed] for a stay of the mandate in Clark I so that, if the § 23-110 motion were denied, the appeal from that denial could be consolidated with the direct appeal.”

• The decision about how to respond to the government’s breach of the plea agreement was “for a counseled client, not the lawyer, to make, no matter how improvident a plea withdrawal would be.” MW

Read full opinion here.

Where’s my money? If your convictions are reversed, you are entitled to reimbursement of money paid into the Violent Victims Act Fund.

Levin Ruffin v. United States (Decided April 14, 2016).

Players: Judges Glickman and Blackburne-Rigsby, and Senior Judge Farrell. Opinion by Judge Blackburne-Rigsby. Jeffrey Light for Mr. Ruffin. Trial Judge: Michael L. Rankin

Facts: The Court of Appeals previously reversed Mr. Ruffin’s misdemeanor assault on a police officer and felony threats convictions for insufficient evidence. See Ruffin v. United States, 76 A.3d 845, 847-48 (D.C. 2013).  We blogged about that decision here.  Following reversal, Mr. Ruffin moved the trial court to: (1) issue a certificate of innocence so that he could file an unjust imprisonment claim against the District of Columbia; and (2) order the return of $250 he paid into the Violent Victims Act Fund (VVC Fund). The court denied the requests, holding it lacked jurisdiction to issue a certificate of innocence and that it had no authority to order reimbursement from the VVC Fund.

Issue 1: Did the trial court have jurisdiction to issue a certificate of innocence?

Holding 1: Yes, although one was unwarranted in this case. Superior Court judges have authority to issue certificates of innocence under D.C. Code § 2-421. In order to receive a certificate of innocence, the petitioner must prove (1) “that his conviction has been vacated,” and (2) “that, based upon clear and convincing evidence, he did not (a) commit any of the acts charged or (b) his acts or omissions in connection with such charge constituted no offense, and (c) he did not, by his misconduct, bring about his own prosecution.” The Court found that although Mr. Ruffin satisfied the first prong, his “wrongful conduct,” though not sufficient to prove guilt of a crime beyond a reasonable doubt, still precipitated his prosecution. Thus, Mr. Ruffin was ineligible for a certificate of innocence.

Issue 2: Should the trial court have ordered the VVC Fund to reimburse Mr. Ruffin his money?

Holding 2: Yes, “the trial court has not only the power but the duty . . . to correct an illegal sentence or fine by imposing a valid and correct sentence (or as the case may be a valid assessment under the VVC Fund).” DH

Read full opinion here.

Is that a gun in your pocket, or did you just drop your cell phone?

Cian Pridgen v. United States (decided April 7, 2016).

The Players: Associate Judges Blackburne-Rigsby and Thompson. Senior Judge Ferren. Opinion by Judge Thompson. Mindy Daniels for Mr. Pridgen. Trial Judge: Ronna Lee Beck.

Facts: Three police officers patrolling in an unmarked vehicle saw Mr. Pridgen walking toward an apartment building. As he walked in front of their car, one officer leaned out the open window, shined a flashlight at him, and shouted out to him to ask whether he had a gun. Mr. Pridgen did not respond, kept walking, and then began to run. He “kept the palm of his left hand pressed against his jacket on his left side” as he was running, and the officers got out and followed him. As the officers followed him, he dropped a cell phone just inside the apartment building but did not stop to get it. The officers stood outside the apartment building, with the Mr. Pridgen inside, and looked through the glass doors to see Mr. Pridgen with his hand moving in his left pocket, and his body pressed up against the apartment door as if he was trying to get inside the unit. Someone let the officers in the locked door, and they shouted at Mr. Pridgen to get on the ground. When he did not obey their orders, they tackled him and forced him to the ground. When they searched him, they found a gun in his jacket pocket. Mr. Pridgen moved to suppress the gun as the fruit of an unlawful seizure.

Issue: Did the police officers have reasonable articulable suspicion justifying a seizure when they tackled Mr. Pridgen inside the apartment building?

Holding: Yes. The court held that Mr. Pridgen was not “seized” until the moment he was tackled by the officers, and so did not analyze whether officers had reasonable articulable suspicion justifying a seizure at the point when Mr. Pridgen began running and the officers ran after him. However, the court found that by the time the officers tackled Mr. Pridgen, there was reasonable articulable suspicion justifying a seizure because 1) Mr. Pridgen was running while holding his left side, which a “reasonable officer” would recognize as “the way individuals tend to run when carrying a firearm;” 2) Mr. Pridgen did not stop to retrieve the cell phone he dropped, negating the possibility that he was holding his left side to protect some other valuable item that was not a gun; and 3) Mr. Pridgen did not obey the officers’ orders to get on the ground, even though he could see that they were wearing vests that said “Police,” creating a “reasonable basis to believe he was armed and dangerous.”

Accordingly, given the “totality of the circumstances,” the court found that there was a reasonable articulable suspicion that Mr. Pridgen was armed, justifying the seizure and search that the led the officers to discover the gun in Mr. Pridgen’s jacket pocket. 

Of Note: Although the court said it was not analyzing whether there was reasonable articulable suspicion to seize Mr. Pridgen when he began running and the officers chased him, the opinion strongly suggests that the court believed there was not. The court said that the crucial moment was when Mr. Pridgen dropped the cell phone but continued running. Recognizing that a gun is not the only item a person might hold onto while running, the court said: “we are persuaded that the officers’ articulable basis for suspicion that Mr. Pridgen was armed did not ripen into a reasonable suspicion that criminal activity was afoot until the officers saw Mr. Pridgen drop the cell phone, decline to stop and retrieve it even though the door was locked behind him, and continue to hold his side as he ran upstairs to the door of the apartment unit.” The court also suggested that running away from the police could not form a basis for suspicion, saying that “we are mindful that a suspect’s flight at the sight of officers who are targeting him with a flashlight may provide a basis for fear of harm that has nothing to do with whether the suspect is engaged in criminal activity.”  SN

Read full opinion here.

Ballistics Unchained: Make the government prove chain of custody before admitting physical evidence.

Michael Wonson v. United States (Decided April 14, 2016)

Players: Judges Blackburne-Rigsby and Easterly, and Senior Judge Reid. Per curiam opinion. Concurrence by Judge Easterly. Deborah Persico for Mr. Wonson. Trial Judge: Thomas J. Motley

Facts: At a murder trial, the government admitted ballistics evidence without proving chain of custody. A crime-scene technician testified to collecting the ballistics evidence and a firearms and toolmark examiner testified about his examination of the evidence, but there was no testimony explaining how the evidence got from the technician to the examiner.

Issue: Was it reversible error for the trial court to admit the ballistics evidence?

Holding: No. There is no need to decide whether it was error at all because if it was error, it was harmless. The Court reasoned that the ballistics evidence was only a “peripheral part” of the government’s case against Mr. Wonson, which included a co-defendant’s inculpatory testimony and two witnesses who corroborated the co-defendant’s story.

Concurrence: Judge Easterly opined that the trial court’s admission of the ballistics evidence was erroneous. Judge Easterly recapped what the government must prove before admitting physical evidence. First, the government must show that “the objects are genuine—i.e., that the proffered evidence is what the government says it is.” Second, the government “must establish the integrity of the evidence—i.e., that the evidence has not changed in material ways.” The government must also establish an unbroken chain of custody by a reasonable probability to gain an “evidentiary presumption that it handled and suitably preserved the evidence.” Absent this showing, the trial court must generally exclude the physical evidence. Judge Easterly rejected the government’s argument that a break in the chain of custody affects only the weight of the evidence and not its admissibility.  DH

Read full opinion here.

Silky Gates Did It! Defendant should have been allowed to point the finger at someone else.

Terry Johnson v. United States (Decided April 14, 2016)

Players: Judges Glickman and Thompson, and Senior Judge Farrell. Opinion by Judge Glickman. PDS for Mr. Johnson. Trial Judge: Herbert B. Dixon, Jr..

Facts: A masked man shot and killed Andre Wiggins in broad daylight. Nobody could identify the shooter. The government’s case against Terry Johnson turned on the “pre-existing enmity” between him and Wiggins. Indeed, the government argued Mr. Johnson was the “only” person who had a motive to kill Wiggins. As it turns out, that was not true. The defense proffered two other people’s beef with Wiggins—Silky Gates and Quannine Payne. Wiggins had pistol-whipped and robbed Mr. Gates days before the murder—a fact the government knew about but failed to disclose to the defense until five weeks before trial. And Wiggins robbed Mr. Payne of his motorbike shortly before the murder. The trial court precluded the defense from introducing the third-party perpetrator (aka Winfield) evidence, deeming the proffers “too speculative.”

The defense thereafter asked the trial court to admit the Silky Gates Winfield evidence as a Brady sanction for the government’s belated disclosure of the evidence. The court refused to impose sanctions finding it would be “incongruous” to allow Mr. Johnson to present a Winfield defense for this Brady violation after it had already decided the defense’s proffer was insufficient to present that defense. The court also denied sanctions because Mr. Johnson already knew about Gates’ motive to kill Wiggins independent of the government and thus it was not prejudiced by the belated disclosure.

Issue 1: Was it error for the trial court to exclude the Winfield evidence?

Holding 1: Yes. A defendant has a constitutional right to present Winfield evidence. For it to be admissible, the evidence “need only tend to indicate some reasonable possibility that a person other than the defendant committed the charged offense.” When a Winfield defense is based on a third party’s motive, the defense must also proffer the person had the “practical opportunity” to commit the crime, meaning the third party had at least “inferential knowledge” of the complainant’s whereabouts. Mr. Johnson’s proffers satisfied the test for admissibility; moreover, the trial court was required to “resolve close questions of admissibility in this setting in favor of inclusion, not exclusion.”

Issue 2: Were the trial court’s reasons for not imposing Brady sanctions erroneous?

Holding 2: Yes. The Court found that the Silky Gates evidence was admissible and material and thus the government was required to disclose the evidence under Brady. That Mr. Johnson learned of Gates from another source “does not get the government off the hook for its tardiness.”

Notes: The trial court also precluded the defense from cross-examining a jailhouse snitch, who was attempting to curry favor from the government based on his testimony in this case, about the lies he had told police during the investigation of his own murder case. The DCCA held that preclusion of this line of cross was error because these past falsifications were relevant and admissible to show testimonial bias because they demonstrated the snitch’s willingness to lie to avoid punishment.  DH

Read full opinion here.

Court Holds Any Object Complainant Reasonably Perceived to Be A Gun Qualifies As A “Dangerous Weapon,” but Casts Some Doubt on Whether Such an Object Should Also Qualify As An “Imitation Firearm”

Warren B. Washington v. United States (decided April 7, 2016)

Players: Chief Judge Washington, Associate Judge Fisher, and Senior Judge Belson. Opinion by Chief Judge Washington. Concurrences by Chief Judge Washington and Judge Fisher. PDS for Mr. Washington. Trial Judge: Stuart G. Nash.

Facts: Mr. Washington was convicted of ADW and PFCV committed “with a firearm or imitation thereof” for an incident in which he brandished an object as if it were a gun, and threatened his ex-girlfriend and her companion as they sat inside a locked car. The object was not recovered, and there was conflicting evidence about whether it was in fact a gun or a cell phone, though at least one of the complainants believed it was a gun. The jury was instructed that to convict for ADW, it must find Mr. Washington “committed the threatening act with a dangerous weapon; that is, a firearm or imitation thereof,” and that “[a]n object is a dangerous weapon if it is designed to be used, actually used, or threatened to be used in a manner likely to produce death or serious bodily injury.” The deliberating jury sent a note inquiring whether “an object that is not a gun (or other truly dangerous weapon)—such as a cell phone—but is brandished in a manner so as to give the impression that it is a dangerous weapon, count[s] as ‘an imitation thereof,’ as set forth” in the ADW instruction. The trial court initially responded by repeating the catchall definition of “dangerous weapon,” but then issued a supplementary instruction defining “imitation firearm” as “any object that resembles an actual firearm closely enough that a person observing it in the circumstances would reasonably believe it to be a firearm.” On appeal, Mr. Washington argued that this answer was erroneous because “imitation firearm” means a physical replica of a gun, not some other object—like a cell phone—that is misperceived to be a gun.

Issue: Was the trial court’s answer incorrect because it failed to require that an “imitation firearm” actually physically resemble a real firearm?

Holding: The jury instruction was not incorrect under the current state of the law. While there is no statutory definition for “imitation firearm,” the Court noted that the definition used here was virtually identical to an instruction defining “imitation pistol” that the Court had previously approved in Smith v. United States, 777 A.2d 801, 810 n.15 (D.C. 2001) (defining “imitation pistol” for purposes of “while armed” statute). Moreover, the Court reasoned, because “any object which the victim perceives to have the apparent ability to produce great bodily harm can be considered a dangerous weapon,” it ultimately “did not matter whether the object in appellant’s hand was objectively physically similar to a firearm.” In other words, the fact that “the victim perceived the item in appellant’s hand to be a firearm” was enough for the jury to conclude that the object was “a dangerous weapon.”

Concurrence #1: Chief Judge Washington, who wrote the opinion for the Court, also wrote a concurring opinion in which he concluded that the Smith-approved definition of “imitation firearm” is overbroad and should be corrected by the full court sitting en banc. The concurrence details why the plain meaning of the term, the statutory context in which it is used, and its legislative history all indicate that “an imitation firearm must physically conform to the characteristics commonly attributable to a real firearm.” It also notes that, despite opining on the meaning of “imitation firearm,” the court in Smith was not actually focused on whether an object like a cell phone could qualify as an “imitation firearm.”

Concurrence #2: Judge Fisher wrote a separate concurrence opining that en banc review is unwarranted in this case because “[a]ny metaphysical shortcomings in the jury instruction defining an imitation firearm did not lead to an unjust conviction,” since Mr. Washington used the object—whatever it was—to create a situation “fraught with danger” by making it appear that he had a gun.

Of Note: 

• The PFCV and while armed statutes both expressly include “imitation” firearms among the specific weapons to which they apply, but the ADW statute says only that it applies to “dangerous weapons.” The Court held that an “imitation firearm” is a type of dangerous weapon within the meaning of the ADW, because it is a “gun,” and a “gun” is an inherently dangerous weapon—not only because it can be used to injure someone, but also because its apparent ability to cause injury can prompt people to react in a way that itself might lead to harm. 

• The Court’s opinion seemed to take care to state that the complainant’s mere perception that Mr. Washington was holding a gun was enough to find that the object in his hand was a dangerous weapon. Despite acknowledging that Smith currently remains good law, the Court’s opinion did not state that the complainant’s perception was enough to find the object was an imitation firearm. This distinction may be important in cases where the charged offense requires proof of a real or imitation firearm, rather than the broader category of any dangerous weapon. 

•  Because there is a suggestion that the court might revisit this issue en banc, it is wise to preserve any challenges to a Smith-type instruction for the foreseeable future. FT

Read full opinion here.

If the Government Breaks the Plea Agreement, You Can Withdraw or Get Resentenced with a New Judge

Paul Mickens v. United States (decided March 10, 2016)

The Players: Chief Judge Washington, Associate Judge Thompson, Senior Judge Ferren. Opinion by Judge Ferren. Mindy A. Daniels for Mr. Mickens. Trial Judge: William M. Jackson.

Facts: Police officers watched Mickens appear to sell crack cocaine outside of an apartment building in Southeast, D.C. When officers tried to arrest Mickens, he fled into the apartment building, took off most of his clothes, and ran until he unlawfully barged into another apartment two blocks away. Officers caught Mickens there and brought him back to the first apartment building to retrieve his clothes. Officers found crack inside of his jacket. He faced a litany of charges – assaulting a police officer, burglary, four counts of distribution of PCP, two counts of distribution of crack, and possession with intent to distribute cocaine.

Mickens entered into a plea agreement with the government in which he would plead guilty to all charges with the burglary reduced to unlawful entry. The government agreed to waive all enhancements, other than the offenses committed during release enhancement, and allocute within the DC Voluntary Sentencing Guidelines.  At sentencing, the government asked for the PWID charge to run consecutively to the other drug charges because the PWID was not part of the same “event” as the other charges. Mickens contended that the government’s allocution violated the plea agreement as he argued that the Guidelines states that all of his non-violent drug charges arose from a “single event” which requires concurrent sentences. Mickens asked for time to decide whether to reconsider the plea and also for the sentencing to be reassigned to another judge. Judge Jackson denied the request and imposed concurrent sentences on the non-violent drug offenses.

Issue: Did the government violate the plea agreement by asking for consecutive sentences?

Holding: Yes. The Court has “stressed that the government must strictly comply with its plea agreement, and that any ambiguity should be construed against the government.” In this case, the distribution and PWID charges were all part of a “single event” because the those charges “assuredly flowed from the ‘same nucleus of facts.’” Thus, the government did not fulfill its promise to allocute within the Guidelines.

The Court rejected the government’s argument that Mickens should receive no remedy since the sentencing judge sentenced concurrently. “If the government violated its plea agreement, appellant’s sentence cannot stand.” The Court remanded the case so that a different judge could resentence, because the government’s illegal allocution had already tainted Judge Jackson. Alternatively, Mickens could withdraw his plea. JW

Read full opinion here.

Trial Issue Potpourri: Witness Mental Health, Partial Jurors, Sufficiency, Voluntariness of Statements, and More

Marcellus McCray, Lamonte Henson, Antonio Fortson, and Timothy Parker v. United States (decided March 10, 2016)

The Players: Associate Judges Glickman and Fisher, Senior Judge Reid. Opinion by  Judge Reid. Stephen Domenic Scavuzzo for Mr. McCray, Thomas T. Heslep for Mr. Henson, William R. Cowden for Mr. Fortson, Peter H. Meyers for Mr. Parker. Trial Judge: Henry F. Greene.

Facts: This case involves multiple shootings that stem from a long-standing feud between two rival groups of young men from the Benning Terrace housing complex in Southeast D.C. Men from “the circle” and from “the Avenue” quarreled over drugs and respect. McCray, Henson, Fortson, and Parker, alleged members of “the circle,” were charged with two separate shootings which took place on May 30, 2011. The violence of the day culminated in the shooting death of Antwan Buckner.

After a two-month trial in 2012, the jury found guilty McCray of AWIKWA, voluntary manslaughter and associated weapons charges; Fortson guilty of voluntary manslaughter, ADW and weapons charges; Parker guilty of voluntary manslaughter and weapons charges; and Henson guilty of CPWL.

Issue 1: Did the trial court deny Fortson the Sixth Amendment right to an impartial jury when it allowed a juror to continue serving without properly investigating a claim that the juror had “pre-decided the case at the outset of the trial, and possibly spoken about her decision with even more jurors”?

Background: On a Thursday afternoon during deliberations, the judge received two jury notes from the foreperson, one of which requested a “private conversation” about an allegation that a specific juror “had their mind made up on the first week,” while the other note indicated a deadlocked jury. The judge excused the jury for the weekend. The following Monday, the parties met with the foreperson who clarified that the juror in question had made up his/her mind in the “first week of trial” when the juror expressed the opinion in a single conversation with the foreperson, out of the presence of the other jurors. After much discussion among the parties, and without objection from any defense counsel, the trial court instructed the foreperson to not discuss the matter with other jurors rather than seek further information as to the potential impact of the juror’s thoughts.

The entire jury was brought back into the courtroom where the judge addressed the “hung note.” Within the judge’s instruction, it acknowledged the difficulty of the jury’s job, asked the jury to maintain civility and an open mind, and specifically charged the jury:

Now, if any of you feel for any reason that you have not been able to, or are not able to follow the instructions I have given you, please let me know in a written note, but do not discuss any personal concerns you may have in this regard with any of the other jurors. You can send me a note in writing if you have a concern about whether you can follow the instructions I have given you.

Defense counsel did not object to the judge’s instructions.

Fortson argued that the judge proceeded too cautiously in its investigation of the juror’s misconduct and that it abused its discretion by only instructing the jurors to advise the court if they “were unable to follow the court’s instructions.”

Holding 1: The judge did not abuse his discretion in handling the juror’s misconduct because (1) the conversation between the foreperson and the juror happened during the first week of the two-month trial; (2) the conversation did not occur with any other juror present; (3) the jury was apparently deadlocked on only one count; and (4) the judge’s instruction was “thorough and balanced.”

Issue 2: With respect to McCray, Fortson, and Parker, did the trial court err by giving the jury urban gun battle and aiding and abetting instructions pertaining to a murder count in the indictment, and did this constitute a constructive amendment?

Holding 2: No. First, any potential error in providing the jury with both the urban gun battle and aiding and abetting instructions in conjunction with the murder count would have been harmless. The government did not make an aiding and abetting argument to the jury. The evidence was sufficient to convict the defendants of voluntary manslaughter as co-principals. The record reflects thoughtful consideration by the jury in convicting Parker, Fortson, and McCray of manslaughter and acquitting Henson.

Second, there was no constructive amendment because “the prosecution did not rely at the trial on a complex of facts distinctly different from that which the grand jury set forth in the indictment” by stressing an urban gun battle theory and not arguing aiding and abetting during closing.

Issue 3: McCray, Fortson, and Henson independently raise sufficiency claims.

• McCray: Was there sufficient evidence to convict McCray of AWIKWA, its related PFCV count, and also of separate murder count?

• Holding: Yes. McCray claims that the government failed to prove the specific intent to kill for AWIKWA because the government did not establish the distance between the shooter and the individuals who were assaulted. Case law “does not require the government to prove specific intent by establishing the exact distance between the shooter and the unknown persons who were assaulted.” The DCCA affirmed primarily on McCray’s own statements to witnesses that he had been shooting at people.  The Court also found sufficient evidence for murder given that, immediately after the shooting, McCray was seen walking in an area where shell casings were later found.

• Henson: Was there sufficient evidence to convict Henson of CPWL?

• Holding: No. The government failed to prove that Henson carried a “gun with a barrel less than 12 inches in length.” No witness could identify the type of firearm Henson possessed. Testimony that Henson used handguns on other occasions did not suffice.

• Fortson: Was there sufficient evidence to convict Fortson of ADW and PFCV?

• Holding: Yes. A witness testified that he saw Fortson, gun in hand, go behind a building where “a whole lot of shooting” took place. After the shooting, Fortson said “my bad” or “my bag.” This evidence was sufficient.

Issue 4: With respect to Parker and McCray, did the trial court commit reversible error by precluding the defense from challenging the credibility of a testifying former co-defendant by denying an opportunity to cross-examine or retain an expert on the witness’s mental disabilities?

Background: Curtis Faison initially was a co-defendant in the case, but pleaded guilty during the trial and agreed to testify on behalf of the government. Defense counsel collectively obtained Faison’s juvenile records, which revealed a 2006 psychiatric evaluation which showed a diagnosis of bipolar disorder. Trial counsel also proffered a recent episode in which Faison threw feces and urine at a guard at the D.C. Jail. Parker sought an expert to evaluate Faison and determine the impact of his mental illness on credibility.

During the ensuing litigation, the trial court admonished the government for putting a person with “serious questions regarding credibility, in terms of his history, on the stand in the last minute in the trial” when “the defense has no chance to investigate him.” The judge also showed skepticism in Faison’s credibility, but recognized the “powerful” nature of his testimony if the jury were to believe him.

The judge ultimately denied Parker’s request.

Holding 4: Yes, the trial court did err, but only enough to warrant a remand. The DCCA stated:

[I]n light of defendant’s right to present a defense, and given the seriousness of the bipolar disorder and the proffer about Mr. Faison’s recent episode of throwing urine and feces at a prison guard, we believe Mr. Parker and Mr. McCray were at least entitled to an opportunity to show what an expert might contribute in an effort to determine any impact of Mr. Faison’s mental disabilities on his credibility.

On remand, McCray and Parker will have the ability to call experts. The judge will then determine “whether at the time of his trial testimony, Mr. Faison’s mental disabilities seriously impacted his credibility.” Applying the Kotteakos standard for harmless error, the judge will either affirm the convictions or order a new trial.

Issue 5: Did the trial court err in failing to suppress McCray’s videotaped statement on voluntariness grounds?


Holding 5: The trial court did not err because McCray’s statements were voluntary. At the time of his statement, (1) McCray was seventeen years old; (2) detectives threatened that his family would face eviction; and (3) detectives threatened that his mother, brother, and sister – who were in the room where a gun was found – would be “locked up.” The Court reasoned that McCray’s admission that he participated in one of the shootings was not the product of coercion.

Issue 6: Did the trial court err in failing to grant McCray’s severance motion so that he could be tried with only co-defendants Hebron and Mungo, who were ultimately tried separately, and were the only other defendants charged with AWIKWA in Counts 8 and 9 of the indictment?

Holding 6: No. McCray argued that evidence of a conspiracy was “very weak” and that the evidence against the other defendants with whom he was tried “was much stronger” than the evidence against him. The DCCA rejected this argument and noted that McCray was tried with three individuals who were also charged with the murder of Antwan Buckner. JW

Read full opinion here.

It’s Still a Seizure When the Police Ask You, but Not Order You, to Get Out of Your Car

Devon Sharp v. United States (decided February 18, 2016)

The Players: Associate Judges Blackburne-Rigsby and Beckwith, Senior Judge Farrell. Opinion by Associate Judge Beckwith. Tito V.A. Castro for Mr. Sharp. Trial Judge: Michael Ryan.

Facts: Police officers heard a “loud scream or commotion” coming from a parking lot identified by officers as a place for valeting cars, but also where “a lot of cars are broken into.” While the scream “wasn’t like a someone-in-danger scream,” it caused enough of a noise to catch the officers’ attention. Sharp was not involved with the noise makers.

When the people who caused the commotion walked away, the police diverted their attention to Sharp, who was sitting in the driver’s seat of a parked Jeep, listening to rap music with “his head down[,]” “looking down at something in his hands.” Two officers wearing police vests and badges approached Sharp and asked why Sharp was there in the parking lot. Sharp nervously gave nonresponsive answers. The police asked to search the Jeep. Sharp declined. At this point, Sharp’s nervous energy had seeped into the officer, who now felt nervous himself, so the police “asked could [Sharp] step out of the vehicle.” Sharp complied with the request and stepped out of his Jeep.

Once Sharp stood with police, he admitted to having brass knuckles, which were recovered from his jacket. Police then found, in a search incident to arrest of both his person and his vehicle, cocaine, marijuana, and other drug paraphernalia.

The trial court denied Sharp’s motion to suppress tangible evidence as the court determined Sharp’s exit from the vehicle to be consensual. After a stipulated trial, Sharp was found guilty of all charges.

Issue 1: Did officers seize Sharp by asking, yet not commanding, him to step out of his car?

Holding 1: Yes. Although the officer “simply asked appellant to get out of the car,” such a request amounted to a Fourth Amendment seizure because “the officer’s routine act of asking the driver to get out of the car—a request made after the driver had already turned down the officer’s initial request to search the car—would have communicated to a reasonable person that the person was not free to decline the officers’ request or otherwise terminate the encounter.” In other words, a reasonable person in Sharp’s shoes would not have felt free to tell the police, “No, thanks. I’d rather not step out. Bye, bye.”

Issue 2: Did the officers have a reasonable articulable suspicion to justify Sharp’s seizure?

Holding 2: No. The police did not have a particularized basis to suspect that criminal activity may have been afoot. Sharp was not involved in the “loud scream or commotion”; those individuals walked away. Sharp was legally parked, and the fact that he was looking at something in his hands did not arouse suspicion. Sharp did not make any furtive gestures. The Court found that Sharp’s nervousness, nonresponsive comments, and refusal to allow the police to search his car did not amount to a reasonable articulable suspicion that would have justified the intrusion.

Of Note:

• The Court stopped short of declaring a per se rule “that a police officer seizes a car’s occupant in every instance where he asks him to get out of the vehicle.” Under the totality of the circumstances test, there remains a theoretical possibility that “an officer might ask a vehicle’s occupant if he would consent to getting out of a car in a way that gave the occupant a realistic right to decline[.]” While the Court did not foreclose such a possibility, the language in the opinion seems to suggest that a majority of these police requests — in cases not involving routine traffic stops — would result in a seizure. JW

Read full opinion here.

Dismissal of Tardy Juror Affirmed

Eugene A. Kelly v. United States (decided March 31, 2016).

Players: Associate Judges Glickman and Blackburne-Rigsby, Senior Judge Steadman.  Opinion by Judge Glickman.  PDS for Mr. Kelly.  Trial Judge: Herbert B. Dixon.

Facts:  Mr. Kelly was convicted of first-degree murder while armed, assault with intent to kill while armed, and related firearm offenses following a jury trial that took place over several days.  The afternoon before deliberations were set to begin, the court instructed the jury to return at 10:00 A.M. The next morning at 10:00, however, Juror 211 was not present.  

After a short recess, the courtroom clerk and the government noted that the juror had been late other days.  The defense persuaded the court to take another recess, but, at 10:57 A.M., when the juror had not arrived, called, or answered court’s call or email, the judge ordered trial to proceed.

Juror 211 called to say that he was parking nearby, as the jury lined up to enter the courtroom.  The defense objected to proceeding without him.  The judge asked the courtroom clerk to find out the juror’s location but decided to move forward without him, when the government objected to further delay.  The court substituted an alternate and set a hearing for Juror 211 to show cause why he should not be held in criminal contempt.

Issue: Whether the trial court committed reversible error by discharging Juror 211.

Holding: No.  Superior Court Rule of Criminal Procedure 24(c) allows the court to replace a juror who “becomes or is found to be unable or disqualified to perform juror duties.”  This case is not like those in which the court has found breaches of Rule 24(c) because the record here supports that the removed juror was unable or disqualified to perform his duties.  Juror absence is observable and disruptive, and the court could infer that Juror 211’s tardiness would continue to disrupt, even if the juror made it to court that day.

Under Rule 24(c), a “sound basis” to replace a juror “may exist when the court has no reason to believe the juror’s arrival is imminent; when the court has reason to believe the juror’s arrival (even if imminent) will occasion further delay of the trial; or when the juror’s tardiness or other conduct indicates to the court that the juror cannot be relied upon to show up for trial on time in the future.”

The court did not have to wait to hear from the juror, where no one knew how long it would take him to arrive and the court planned to order him to show cause why he should not be held in criminal contempt, triggering concerns about the fairness of asking him to explain his absence.

Of Note: While recognizing the trial judge’s discretion to address juror attendance issues under Rule 24(c), this opinion also recognizes boundaries to that discretion.  The defendant has a “right to have his trial completed by a particular tribunal” once the jury is empaneled.  The court notes that “this would be a different case,” presumably with a different outcome, if the judge had acted “precipitously or without solicitude for appellant’s desire to retain Juror 211.”  WC

Read full opinion here.